Common use of Limitation on Change in Control Payments Clause in Contracts

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained in this Agreement to the contrary, if any amount or benefit to be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement Section 3.3 to the contrary, if any amount if, with respect to the Optionee, the acceleration of the vesting of this Option or benefit to the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an deemed a “Excess Parachute Payment,payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), together with any other “payments” that the Optionee has the right to receive from the Company or any successor provision theretocorporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, but for would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the application of this sentenceCode), then the payments and benefits “payments” to be paid or provided under this Article 7 the Optionee as set forth herein will be reduced to the minimum extent necessary (but largest amount as will result in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and “payments” being subject to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code; provided, or any successor provision thereto, any that such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed by under Section 4999 of the Code attributable to any comparable provision such excess parachute payments. Notwithstanding the foregoing sentence, if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of state lawSections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant “payments” to the preceding sentence Optionee as provided herein will be made by an independent accounting firm that is a treated as “Big-4 Accounting Firmpayments” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination arising under such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.separate agreement

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any amount economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to be paid the terms of this Agreement or provided under this Article 7otherwise (a “Payment”), or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided value of any such Payments payable under this Article 7 Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made Reduced Amount only if and the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the extent that such reduction would result Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in an increase in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the aggregate payment Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, Code and any under applicable federal, state and local income laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes). Executive agrees ), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible Executive’s taxable income for the payment of tax year in which the CIC Date occurs, or such experts’ fees. (bother rate(s) If requested by Executive or Employer, as the determination of whether any reduction in such payments or benefits Accounting Firm determines to be provided under this Article 7 or otherwise is required pursuant likely to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable apply to Executive and Employerin the relevant tax year(s) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of which any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended Payment is expected to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriatemade.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement Section 3.3 to the contrary, if any amount if, with respect to the Optionee, the acceleration of the vesting of this Option or benefit to the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an deemed a “Excess Parachute Payment,payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), together with any other “payments” that the Optionee has the right to receive from the Company or any successor provision theretocorporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, but for would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the application of this sentenceCode), then the payments and benefits “payments” to be paid or provided under this Article 7 the Optionee as set forth herein will be reduced to the minimum extent necessary (but largest amount as will result in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and “payments” being subject to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code; provided, or any successor provision thereto, any that such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed by under Section 4999 of the Code attributable to any comparable provision such excess parachute payments. Notwithstanding the foregoing sentence, if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of state lawSections 280G or 4999 of the Code (including, without limitation, that “payments” under such agreement or otherwise will be reduced, that the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant “payments” to the preceding sentence Optionee as provided herein will be made by an independent accounting firm that is a treated as “Big-4 Accounting Firmpayments” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination arising under such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriateseparate agreement.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained in this Agreement to the contrary, if any amount or benefit to be paid or provided under this Article 76, or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 6 will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Code Section 4999 of the Code4999, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 6 or otherwise is required pursuant to the preceding sentence paragraph will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination of such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay separation pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 6 or otherwise is required to be reduced pursuant to this Section 7.46.5, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this SectionSection 6.5. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement Section 3.3 to the contrary, if any amount if, with respect to the Optionee, the acceleration of the vesting of the Option or benefit to the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an deemed a “Excess Parachute Payment,payment” within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), together with any other “payments” that the Optionee has the right to receive from the Company or any successor provision theretocorporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, but for would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the application of this sentenceCode), then the payments and benefits “payments” to be paid or provided under this Article 7 the Optionee as set forth herein will be reduced to the minimum extent necessary (but largest amount as will result in no event to less than zero) so that no portion of such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, that such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such payment excess parachute payments. Notwithstanding the foregoing sentence, if the Optionee is subject to a separate agreement with the Company or benefita Subsidiary that expressly addresses the potential application of Sections 280G or 4999 of the Code (including, as so without limitation, that “payments” under such agreement or otherwise will be reduced, constitutes an Excess Parachute Paymentthat the Optionee will have the discretion to determine which “payments” will be reduced, that such “payments” will not be reduced or that such “payments” will be “grossed up” for tax purposes), then this Section 3.3(b) will not apply, and any “payments” to the Optionee as provided herein will be treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Incentive Award that constitutes deferred compensation subject to Section 409A of the foregoing reduction will be made only Code if and the modification would cause such Incentive Award to become subject to the extent that such reduction would result adverse tax consequences specified in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 409A of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained in this Agreement to the contrary, if any amount or benefit to be paid or provided under this Article 76, or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” “ within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 6 will be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Code Section 4999 of the Code4999, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 6 or otherwise is required pursuant to the preceding sentence paragraph will be made by an independent accounting firm that is a “Big-4 Accounting Firm” “ (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination of such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay separation pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 6 or otherwise is required to be reduced pursuant to this Section 7.46.5, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this SectionSection 6.5. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement Section 3(c) to the contrary, if any amount if, with respect to the Optionee, the acceleration of the vesting of this Option or benefit to the payment of cash in exchange for all or part of the Option Shares as provided above (which acceleration or payment could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” deemed a "payment" within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), together with any other "payments" which the Optionee has the right to receive from the Company or any successor provision theretocorporation which is a member of an "affiliated group" (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, but for would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the application of this sentenceCode), then the payments and benefits "payments" to be paid or provided under this Article 7 the Optionee as set forth herein will be reduced to the minimum extent necessary (but largest amount as will result in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and "payments" being subject to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to by Section 4999 of the Code; provided, or any successor provision thereto, any that such reduction shall be made only if the aggregate amount of the payments after such reduction exceeds the difference between (A) the amount of such payments absent such reduction minus (B) the aggregate amount of the excise tax imposed by under Section 4999 of the Code attributable to any comparable provision such excess parachute payment. Notwithstanding the foregoing sentence, if the Optionee is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of state lawSections 280G or 4999 of the Code (including, without limitation, that "payments" under such agreement or otherwise will not be reduced or that the Optionee will have the discretion to determine which "payments" will be reduced, that such "payments" will not be reduced or that such "payments" will be "grossed up" for tax purposes), then the limitations of this Section 3(c)(ii) will, to that extent, not apply, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence "payments" will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged treated as Employer’s independent public auditor, at the expense of Employer, and the determination "payments" arising under such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriateseparate agreement.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, in the event that it is determined by an independent accounting firm chosen by the Company (the “Accounting Firm”) that any economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement, the plans or programs referred to herein, or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the Reduced Amount only if any amount or benefit the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such Accounting Firm determines that the Payments shall be paid or provided reduced, then such reduction shall be made first by reducing cash payments due under this Article 7Agreement, then cash payments under other agreements, plans or programs, and then non-cash benefits, in each case in the reverse order in which they are due, until the present value of the Payments is reduced to the Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state and local laws (and including any employment, social security or Medicare taxes, and other taxes (including any other plan excise taxes)), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to the Executive’s taxable income for the tax year in which the change in ownership or agreement between Executive and Employer would be an “Excess Parachute Payment,” control (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (Code) giving rise to the “Code”)Excise Tax occurs, or any successor provision thereto, but for such other rate(s) as the application of this sentence, then the payments and benefits Accounting Firm determines to be paid or provided under this Article 7 will be reduced likely to the minimum extent necessary (but in no event apply to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase Executive in the aggregate payment and benefits relevant tax year(s) in which any Payment is expected to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ feesmade. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.

Limitation on Change in Control Payments. In the event that: (a) Notwithstanding the aggregate payments or benefits to be made to Executive pursuant to this Agreement, together with other payments and benefits which Executive has a right to receive from the Employers, which are deemed to be parachute payments as defined in Section 280G of the Code (the “Termination Benefits”), would be deemed to include an “excess parachute payment” under Section 280G of the Code; and (b) if such Termination Benefits were reduced to an amount (the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an amount equal to three times Executive’s “base amount,” as determined in accordance with said Section 280G, and the Non-Triggering Amount less the product of the marginal rate of any provision contained in this Agreement to applicable state and federal income tax and the contrary, if any Non-Triggering Amount would be greater than the aggregate value of the Termination Benefits (without such reduction) minus (A) the amount or benefit of tax required to be paid or provided under this Article 7by Executive by Section 4999 of the Code and further minus (B) the product of the Termination Benefits and the marginal rate of any applicable state and federal income tax, or then the Termination Benefits shall be reduced to the Non-Triggering Amount. The reduction required hereby among the Termination Benefits shall be allocated to the payments and benefits set forth in Sections 7(b) and 7(c), as applicable, in the following order until the reduction is fully accomplished: Subsection (ii), (iii) and (viii) of Sections 7(b) and 7(c), as applicable. If, however, the reduction cannot be fully accomplished after using the order in the prior sentence, the reduction shall be allocated to any other plan remaining payments or agreement between benefits, with the payments to be reduced in reverse chronological order such that the last payments to be made to you will be reduced first until the reduction is fully accomplished. For purposes of this Section 9, (i) no portion of any post-termination payments and benefits, the receipt or enjoyment of which the Executive shall have waived in writing prior to the date of payment shall be considered a Termination Benefit, (ii) no portion of any post-termination payments and Employer would benefits shall be an taken into account which in the opinion of the Company’s tax counsel does not constitute a “Excess Parachute Payment,parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 will be reduced to the minimum extent necessary (but in no event to less than zero280G(b)(2) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge (iii) the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and Termination Benefits shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements reduced only to the extent necessary so that such items reduce the amount Termination Benefits (other than those referred to in clauses (i) and (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the parachute payment. In Code or are otherwise not subject to excise tax, in the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executiveopinion of the Company’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriatetax counsel.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any amount economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be paid or provided subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then the value of any such Payments payable under this Article 7Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, or any other plan or agreement between Executive as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and Employer would be an the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “Excess Parachute Paymentbase amount,” within the meaning of Section 280G 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “CodeReduced Amount”). Notwithstanding the foregoing, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 will Agreement Payments shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made Reduced Amount only if and the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the extent that such reduction would result Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in an increase in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the aggregate payment Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, Code and any under applicable federal, state and local income laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes). Executive agrees ), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible Executive’s taxable income for the payment of tax year in which the CIC Date occurs, or such experts’ fees. (bother rate(s) If requested by Executive or Employer, as the determination of whether any reduction in such payments or benefits Accounting Firm determines to be provided under this Article 7 or otherwise is required pursuant likely to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable apply to Executive and Employerin the relevant tax year(s) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of which any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended Payment is expected to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Sectionmade. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.Xxx X. Xxxxxxxx Employment Agreement

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any amount economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to be paid the terms of this Agreement or provided under this Article 7otherwise (a “Payment”), or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided value of any such Payments payable under this Article 7 Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made Reduced Amount only if and the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the extent that such reduction would result Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in an increase in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the aggregate payment Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, Code and any under applicable federal, state and local income laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes). Executive agrees ), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible Executive’s taxable income for the payment of tax year in which the CIC Date occurs, or such experts’ fees. (bother rate(s) If requested by Executive or Employer, as the determination of whether any reduction in such payments or benefits Accounting Firm determines to be provided under this Article 7 or otherwise is required pursuant likely to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable apply to Executive and Employerin the relevant tax year(s) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of which any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended Payment is expected to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Sectionmade. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.Xxx X. Xxxxxxxx Employment Agreement

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if any amount or benefit if, with respect to Grantee, the acceleration of the vesting of Restricted Shares as provided in Section 3 of this Agreement (which acceleration could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” deemed a payment within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), together with any other payments which Grantee has the right to receive from the Company or any successor provision theretocorporation which is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member (together the “payments”), but for would constitute an “Excess Parachute Payment” (as defined in Section 280G(b)(1) of the application of this sentenceCode), then the payments and benefits provided to be paid or provided Grantee under this Article 7 will Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefitpayment, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to ExecutiveGrantee, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). Executive Grantee agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible for the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 Agreement or otherwise is required to be reduced pursuant to this Section 7.4Agreement, Executive (in Executive’s sole discretion) Grantee will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this SectionSection 9. Employer will provide Executive Grantee with all information reasonably requested by Executive Grantee to permit Executive Grantee to make such designation. In the event that Executive Grantee fails to make such designation within ten five (105) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriate.” Except as expressly provided in this Amendment, all other terms, conditions, and provisions of the Agreements shall continue in full force and effect as provided therein and neither party waives any rights, or modifies or revises the parties’ obligations thereunder.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any amount economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to be paid the terms of this Agreement or provided under this Article 7otherwise (a “Payment”), or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided value of any such Payments payable under this Article 7 Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made Reduced Amount only if and the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if Executive’s Agreement Payments were reduced to the extent that such reduction would result Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in an increase in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the aggregate payment Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, Code and any under applicable federal, state and local income laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes). Executive agrees ), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to take such action as Employer reasonably requests to mitigate or challenge the application Executive’s taxable income Xxx X. Xxxxxxxx Employment Agreement Page 9 of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible 14 for the payment of tax year in which the CIC Date occurs, or such experts’ fees. (bother rate(s) If requested by Executive or Employer, as the determination of whether any reduction in such payments or benefits Accounting Firm determines to be provided under this Article 7 or otherwise is required pursuant likely to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable apply to Executive and Employerin the relevant tax year(s) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of which any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended Payment is expected to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriatemade.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained in this Agreement to the contrarycontrary contained herein, if any amount or benefit to acceleration of the exercisability of the Option (which acceleration could be paid or provided under this Article 7, or any other plan or agreement between Executive and Employer would be an deemed a “Excess Parachute Payment,payment” within the meaning of Section 280G(b)(2) of the Code), either alone or together with other payments in the nature of compensation to the Optionee that are contingent on a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a “parachute payment” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Article 7 Company will be reduced to compute the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an net after-tax basis proceeds to the Optionee (i) if such acceleration and/or such other benefits and payments would be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto) and (ii) taking into account the excise tax imposed pursuant to by Section 4999 of the Code, or any successor provision thereto, any if such acceleration and/or such other benefits and payments would not be reduced. If the reduction of the acceleration and/or such other benefits and payments as described in clause (i) of the preceding sentence would result in greater net after-tax proceeds to the Optionee than the net after-tax proceeds to the Optionee after taking into account the excise tax imposed by any comparable provision Section 4999 of state lawthe Code as described in clause (ii) of the preceding sentence, then the acceleration and/or such other benefits and payments shall be reduced as described in clause (i); otherwise, there shall be no reduction of the nature described in clause (i), and any Optionee shall pay all applicable federal, state and local income taxes). Executive agrees to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel any excise tax imposed by Section 4999 of the Code. If the Company determines that the reduction applies, the Company shall notify the Optionee of its determination and accounting advice, as may reasonably be required, the Optionee in good faith shall select from among the foregoing benefits and payments those which shall be responsible for reduced and, if the payment of such experts’ fees. (b) If requested by Executive or Employer, the determination of whether any reduction in such payments or benefits to be provided under this Article 7 or otherwise is required pursuant to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable to Executive and Employer) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive Optionee fails to make such designation selection within ten (10) business 15 calendar days of receiving following notification by the Company, the Company shall make such information, Employer may effect such reduction in any manner it deems appropriateselection.

Limitation on Change in Control Payments. (a) Notwithstanding any provision contained anything in this Agreement to the contrary, if in the event that it is determined by an independent accounting firm chosen by mutual agreement of the parties (the “Accounting Firm”) that any amount economic benefit, payment or distribution by the Company to or for the benefit of Executive, whether paid, payable, distributed or distributable pursuant to be paid the terms of this Agreement or provided under this Article 7otherwise (a “Payment”), or any other plan or agreement between Executive and Employer would be an “Excess Parachute Payment,” within subject to the meaning of excise tax imposed by Section 280G 4999 of the Internal Revenue Code of 1986, as amended (and the applicable regulations thereunder) (the “Code”) (such excise tax referred to in this Agreement as the “Excise Tax”), or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided value of any such Payments payable under this Article 7 Agreement (the “Agreement Payments”) which constitute “parachute payments” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm, will be reduced so that the present value of all Payments (calculated in accordance with Section 280G of the Code and the regulations thereunder), in the aggregate, is equal to 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Reduced Amount”). Notwithstanding the foregoing, the Agreement Payments shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction will be made Reduced Amount only if and the Accounting Firm determines that Executive would have a greater “Net After-Tax Receipt” (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the extent that such reduction would result Reduced Amount. “Net After Tax-Receipt” shall mean the present value (as determined in an increase in accordance with Section 280G(b)(2)(A)(ii) and 280G(d)(4) of the aggregate payment Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, Code and any under applicable federal, state and local income laws (and including any employment, social security or Medicare taxes, and other taxes (including any other excise taxes). Executive agrees ), determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied to take such action as Employer reasonably requests to mitigate or challenge the application of such tax, provided that Employer shall supply such counsel and expert advice, including legal counsel and accounting advice, as may reasonably be required, and shall be responsible Executive’s taxable income for the payment of tax year in which the CIC Date occurs, or such experts’ fees. (bother rate(s) If requested by Executive or Employer, as the determination of whether any reduction in such payments or benefits Accounting Firm determines to be provided under this Article 7 or otherwise is required pursuant likely to the preceding sentence will be made by an independent accounting firm that is a “Big-4 Accounting Firm” (or other accounting firm mutually acceptable apply to Executive and Employerin the relevant tax year(s) not then-engaged as Employer’s independent public auditor, at the expense of Employer, and the determination such independent accounting firm will be final and binding on all parties. In making its determination, the independent accountant will allocate a reasonable portion of the Change in Control Separation Pay to the value of which any personal services rendered following the Change in Control and the value of any non-competition agreement or similar agreements to the extent that such items reduce the amount of the parachute payment. In the event that any payment or benefit intended Payment is expected to be provided under this Article 7 or otherwise is required to be reduced pursuant to this Section 7.4, Executive (in Executive’s sole discretion) will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. Employer will provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that Executive fails to make such designation within ten (10) business days of receiving such information, Employer may effect such reduction in any manner it deems appropriatemade.